Federated Storemen & Packers Union of Australia, Re; Wooldumpers (Vic) Ltd, Ex p [1989] HCA 10

After hearing argument, Mr. Commissioner Caesar held that he had jurisdiction. He said:

And the [C]ommission does intend to hear this matter under dispute finding which was found in 1986 by Commissioner Cox following a log of claims served by the [U]nion. Contained in that log of claims was a clause 23, contract of employment, which puts a restriction on termination and restrictions on when termination can occur.

Acting under that dispute finding I will hear this matter without finding a separate industrial dispute.

Ordinarily, where a dispute about reinstatement arises for the first time after employment has been terminated, two questions arise. The first is whether the dispute has an interstate character. The second is whether the dispute pertains to the relations of employers and employees and not merely to the relationship between an individual former employee and his employer: see Re Ranger Uranium Mines Pty. Ltd.; Ex parte Federated Miscellaneous Workers' Union of Australia [1] . The first of these questions is the critical question here.

In the present case the Commissioner is exercising jurisdiction on the footing that the dispute to be settled is that arising from non-acceptance of the 1986 log of claims. He made no finding of dispute in relation to what occurred on 4 May 1988. So we do not have to decide whether the dispute about reinstatement, viewed in isolation and divorced from its relationship with the 1986 log of claims, has an interstate character. The jurisdiction that the Commissioner is exercising, if it is to be sustained, rests on the argument which looks to the 1986 log of claims. Clause 23 of that log provided that notice of termination of employment should not be given without the prior consent of the Union and that the employer should then assist the employee in obtaining alternative employment by means such as leave on full pay in order to seek such alternative employment or to undertake retraining. The clause commenced with the statement that, except in cases of casual employment, "all employment shall be permanent".

The clause does not explicitly provide that an employee who has been dismissed otherwise than in accordance with its provisions shall be reinstated. Nor does the clause seek to prescribe general standards for reinstatement of such dismissed employees. However, in the regime of permanent employment which the clause is designed to bring about, there is an implicit demand that an employee who is dismissed otherwise than in accordance with the provisions of the clause shall be reinstated. This interpretation conforms to the view that a log of claims, particularly an ambit claim, should not be read narrowly: Reg. v. Clarkson; Ex parte General Motors-Holden's Pty. Ltd. [2] ; Reg. v. Heagney; Ex parte A.C.T. Employers Federation [3] .

1. (1976) 134 C.L.R. 56, at p. 72. 2. (1976) 137 C.L.R. 86, at pp. 98-100, 104, 105-106.

The conclusion that the 1986 log of claims contained a demand for an award provision creating an obligation on the part of employers to reinstate employees dismissed otherwise than in accordance with the log does not advance the Union's case very far. The fact that the log contained such an unsatisfied demand would have enabled the Commissioner to vary the Award by including in it a general provision of that kind. Section 59(2) of the Act authorizes the Commission to vary any of the terms of an award, if the Commission thinks it desirable to do so. The power of variation extends to the correction or improvement of the provisions of an award but also to meet changed conditions so that the settlement effected by the Award is maintained in an expedient and satisfactory form adjusted to those changed conditions: Reg. v. Kelly; Ex parte Australian Railways Union [4] ; Reg. v. Isaac; Ex parte State Electricity Commission (Vict.) [5] .

1. (1953) 89 C.L.R. 461, at pp. 473-474. 2. (1978) 140 C.L.R. 615, at pp. 624-625.

However, the circumstances of the present case do not indicate that the Union was seeking a variation of the Award. Nor do they indicate that the Commissioner was embarking on a variation of the Award. Instead, it seems, the Commissioner proposed to resolve the dispute that arose on 4 May 1988 by hearing the Union claim for the reinstatement of Mr. King, that being the award which the Union was seeking. True it is that the Commissioner found that the dispute which he was arbitrating was the one that arose from non-acceptance of the 1986 log - not the dispute that was notified on 4 May 1988 - but that was because he regarded the earlier dispute, by reason of its interstate quality, as a source of jurisdiction to deal with the Union's claim for reinstatement of Mr. King, and in this the Commissioner was encouraged by the Union's submissions. In truth the Commissioner was endeavouring to resolve the dispute about reinstatement of Mr. King. He was not directing his attention to a variation of the Award which would impose a general obligation on employers bound by the Award to reinstate employees dismissed otherwise than in accordance with its terms. The Union was not asking him to direct his attention to that topic. Had the Union done so, it would have been necessary to join the respondent employers to the Award as parties to the proceedings for a variation. No such step was taken.

As the Court noted in Ranger Uranium [6] , where there is no entitlement to reinstatement under the Act or the relevant award and no jurisdiction in the Commission to order reinstatement, a dispute arising out of the termination by the employer of employees' employment would ordinarily be regarded as embracing a claim for the creation of an obligation on the part of the employer to reinstate the employees. Such a dispute, if it had an interstate character, might be settled by the making of an award (or the variation of an existing award) and the award might be given an operation dating from the occurrence of the dispute on the footing that the award effects a settlement as from that date of a claim made for the creation of an obligation commencing at that time: Federated Engine-Drivers' and Firemen's Association of Australasia v. Adelaide Chemical and Fertilizer Co. Ltd. [7] .

1. (1987) 163 C.L.R., at p. 664. 2. (1920) 28 C.L.R. 1, at pp. 11, 15-16, 22.

The question then is whether the proceedings before the Commissioner involved such a claim. In considering this question, it is necessary to ascertain the nature of the dispute and to identify what one side is claiming and what the other side is refusing. Once this is done we can determine whether what was claimed was something that was sought and denied in the earlier dispute or something that stands apart from that dispute.

Here the circumstances give little, if any, support to the notion that the dispute notified on 4 May 1988 embraced a claim by the Union for the imposition of a general obligation on an employer to reinstate employees of the kind sought in cl. 23 of the log. The notification itself, though vague and ambiguous, did not make any such explicit claim. In terms it seemed to call attention to the need for, or the possibility of, reinstating Mr. King. According to the transcript of proceedings in the Commission the Union's case was that the Commission was vested with authority to make an award for the reinstatement of Mr. King because "reinstatement" was within the 1986 log. Unfortunately for its case the Union did not discern the difference between a claim for the creation of an obligation to reinstate and a claim for actual reinstatement. The former was within the ambit of the 1986 log; the latter was not, unless it was related to the former. It is necessary, therefore, to determine whether the claims were so related.

No doubt there are circumstances in which the making of an award for the reinstatement of particular employees may become reasonably incidental to the settlement of an antecedent interstate dispute embracing a claim for the imposition on employers of an obligation to reinstate employees dismissed otherwise than in accordance with the terms of a proposed award. The Commission can validly make an award requiring employers not to terminate the employment of employees otherwise than in accordance with certain conditions or circumstances in settlement of an interstate dispute arising from the employers' rejection of a claim by a union for an award incorporating a clause restricting the employers' right to terminate in this way. So much seems to have been assumed in Reg. v. Bain; Ex parte Cadbury Schweppes Australia Ltd. [8] . In the context of a claim for permanent employment it is then but a short step to say that the making of an award for reinstatement of employees whose employment has been terminated otherwise than in accordance with the terms of the award or proposed award may in appropriate circumstances be reasonably incidental to the settlement of that interstate dispute.

The Act authorizes the Commission to make an award if it is "relevant" or "reasonably incidental" or "appropriate" to the settlement of the differences constituting the interstate dispute or if it has a "natural or rational tendency to dispose of the question at issue": Reg. v. Galvin; Ex parte Amalgamated Engineering Union, Australian Section [9] ; Reg. v. Holmes; Ex parte Victorian Employers' Federation [10] . But, as Dixon C.J., Webb, Fullagar and Kitto JJ. went on to say in Galvin [9] :

the award need not adhere to the remedy or relief proposed or claimed in the course of the dispute or in a demand forming a source of the dispute, so long as the provision in the award is related to the dispute or its settlement in the manner stated. See also Reg. v. Spicer; Ex parte Seamen's Union of Australia [11] . 1. (1952) 86 C.L.R. 34, at p. 40. 2. (1980) 145 C.L.R. 68, at p. 76. 3. (1952) 86 C.L.R. 34, at p. 40. 4. (1957) 96 C.L.R. 341, at p. 350.

These comments were directed to the scope of the award-making power conferred upon the Commission by the old s. 42 (now s. 55). It should be noted that the majority in Galvin suggested that the words of the section might be read too widely and remarked, in Delphic fashion [12] :

These words might be taken to allow a more remote or tenuous connexion with the dispute than is requisite as a matter of objective fact. 1. (1952) 86 C.L.R., at p. 41.

The words "remote or tenuous connexion with the dispute" conjure up limitations on constitutional power. For my part I doubt that it is essential, in order to sustain the validity of an award, to demonstrate as a matter of objective fact that the making of the award is necessary or expedient for the purpose of preventing or settling the dispute or of preventing further industrial disputes. The scope of the award-making power is more appropriately expressed, though perhaps somewhat restrictively, in the earlier passages in the majority judgment in Galvin and in Holmes [13] . In particular, the award-making power may be subject to fewer restrictions where the Commission is exercising that power for the purpose of preventing a threatened or impending dispute or further disputes. In that context it may be appropriate to allow the Commission a considerable degree of latitude in assessing what is necessary or expedient for the purpose of preventing the dispute or disputes.

It follows from what I have said that the concept of ambit does not precisely or adequately express the scope of the Commission's award-making power under s. 55. Reg. v. Spicer [14] is an interesting illustration of this proposition. In that case the inclusion in an award of a bans clause was upheld on the footing that it was reasonably necessary and proper for the effective determination of the dispute and to secure the maintenance of the other provisions of the award, though it was argued that the clause was substantially different from what appeared in the log of claims. Likewise, in appropriate circumstances, the Commission might well conclude that the making of an award reinstating particular employees was fairly incidental to the settlement of a dispute involving a claim to permanent employment in the sense already discussed. But whether the Commission would be justified in coming to that conclusion would depend on the nature of the original dispute and the way in which it had evolved. As Murphy J. pointed out in Cadbury Schweppes [15] :

an industrial dispute may be diminished or ended or enlarged or altered during the course of the proceedings in the Commission: see Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Printing Industry Employees' Union [16] ; Reg. v. Portus; Ex parte Transport Workers' Union of Australia [17] . 1. (1957) 96 C.L.R. 341. 2. (1984) 159 C.L.R., at p. 168. 3. (1964) 109 C.L.R. 544. 4. (1977) 141 C.L.R. 1, at pp. 23-25.

In the present case, nothing has emerged to show that the resolution of the claim for reinstatement of Mr. King is incidental to the settlement of any part of the dispute that may have evolved from the 1986 log. Indeed, though the parties regard that dispute as retaining some life, there is little, if anything, in the materials to suggest that cl. 23 of the log was still a bone of contention until the Union hit upon the clause in its quest for a jurisdictional talisman with a view to sustaining the exercise of jurisdiction in this case. There is nothing in the materials before the Court to connect the claim for the reinstatement of Mr. King, which appears to be the subject-matter of the dispute notified on 4 May 1988, to the antecedent interstate dispute or to show that the claim forms part of that dispute so that settlement of the disputed claim to reinstatement can be regarded as reasonably incidental or appropriate to the settlement of the earlier and wider interstate dispute.

The case is relevantly indistinguishable from Reg. v. Gough; Ex parte Cairns Meat Export Co. Pty. Ltd. [18] (see pp. 351-352). The relevant parts of that decision are those relating to the question of whether the particular claim fell within the scope of the previous award. Those passages which concern the question of breach of that award are not applicable to the present case, which involves no prior award. Ranger Uranium [19] lends no support to the Union's case, although it appears to have been treated in the Commission as if it sustained the Commissioner's decision. Interstateness was not an issue in Ranger Uranium where the purpose of the Commission's inquiry was to determine whether rights and obligations should be created [20] .

1. (1962) 108 C.L.R. 343. 2. (1987) 163 C.L.R. 656. 3. (1987) 163 C.L.R., at p. 666.

The Union submitted that the onus is on the prosecutor to establish want of jurisdiction in the Commission. So it is. But I am satisfied that the onus has been discharged. Consequently it is unnecessary to address the question whether the dispute was about an industrial matter pertaining to the relations of employer and employees.

In view of the Commissioner's finding of dispute, it is not for this Court to decide whether it was open to the Commissioner to find that the dispute that arose on 4 May 1988 was an interstate dispute in its own right. But it is relevant to observe that the demand for reinstatement was made by a national union with the capacity by means of the co-operative action of its members to bring about industrial action in more than one State in support of its demand. This is one of the realities of current industrial relations which the Commission has to take into account in exercising its wide-ranging powers under the Act. As I observed in Reg. v. Turbet; Ex parte Australian Building Construction Employees and Building Labourers' Federation [21] :

Generally it has been thought that an interstate industrial dispute is not constituted by a disagreement between an employer in one State and a national union whose members are to be found in every State. However, I went on to point out that the situation is different where the disputants are to be found in more than one State, as, e.g., when the employer in dispute with the national union carries on business in two States and the dispute extends to the employees in those States. In Turbet the Court held that a dispute in Victoria which, viewed in isolation, had the appearance of a one-State dispute, was in reality but a manifestation of a larger interstate dispute. These remarks were addressed to a situation in which there was an actual interstate industrial dispute, there being no occasion to examine the same problem in the context of "a threatened, impending or probable dispute": see the definition of industrial dispute in s. 4(1) of the Act. In principle the same comments would apply. But if we start with the premise that there is an actual intrastate industrial dispute, in order to show the existence of a threatened, impending or probable interstate industrial dispute, what is required is evidence that will support a finding that the intrastate dispute is likely to extend interstate. 1. (1980) 144 C.L.R. 335, at p. 349.

The Act confers power on the Commission to prevent, as well as settle, industrial disputes in the sense defined: see ss. 18, 20 and 26 of the Act, to which Murphy J. made reference in his judgment in Turbet [22] . This statutory power is, accordingly, confined to the prevention (and settlement) by conciliation and arbitration of threatened, impending and probable industrial disputes. It may be that the constitutional power (s. 51(XXXV)) enables the Parliament to legislate for the prevention by conciliation and arbitration of industrial disputes which fall short of being threatened, impending or probable disputes. This is not the occasion to discuss that question. However, it is appropriate to recall that members of this Court have suggested from time to time that the Act may not exercise to the full the constitutional power reposed in the Parliament: see Jumbunna Coal Mine, N.L. v. Victorian Coal Miners' Association [23] ; Australian Tramway Employés Association v. Prahran and Malvern Tramway Trust [24] ; Reg. v. Coldham; Ex parte Australian Social Welfare Union [25] ; but cf. Federated Clothing Trades of the Commonwealth of Australia v. Archer [26] ; Burwood Cinema Ltd. v. Australian Theatrical and Amusement Employees' Association [27] .

1. (1980) 144 C.L.R., at pp. 354-355. 2. (1908) 6 C.L.R. 309, at p. 370. 3. (1913) 17 C.L.R. 680, at pp. 692, 704, 705-706. 4. (1983) 153 C.L.R. 297, at p. 312. 5. (1919) 27 C.L.R. 207, at p. 216. 6. (1925) 35 C.L.R. 528, at pp. 541-542.

No doubt the structure of the Act and the desire to ensure in particular cases that the Commission has the widest power to make a comprehensive industry award has led to an over-emphasis on the paper dispute arising from non-acceptance of a log of claims as the principal foundation of the Commission's power to settle industrial disputes. This procedure was described by Dixon C.J., McTiernan and Kitto JJ. in Reg. v. Graziers' Association of N.S.W.; Ex parte Australian Workers' Union [28] , as "an artificial procedure for the production of an industrial disagreement". Indeed, in the same case Fullagar J. went further and referred to the entire system for conciliation and arbitration of industrial disputes under the Act as "highly artificial" [29] . The paradox is that an Act whose object is to promote and preserve industrial peace encourages the creation of an industrial dispute as a means of conferring jurisdiction on the Commission to make a general industry award, the effect of the award being to settle the dispute which has been artificially created: see J. H. Portus, The Necessity for an Industrial Dispute, Australian Law Journal, vol. 30 (1956), p. 250. This is because the Act gives emphasis to the settlement of industrial disputes in the defined sense. The existence of such a dispute is a condition of jurisdiction in the Commission. Recognition of the importance of preventing industrial disputes, so long as it is by conciliation and arbitration, would enable the Commission to look to the realities, instead of the artificialities, of industrial relations.

1. (1956) 96 C.L.R. 317, at p. 324. 2. (1956) 96 C.L.R., at p. 333.

I would make the order nisi for prohibition absolute so as to preclude the Commission from proceeding further with the dispute found by the Commissioner.

On 4 May 1988, The Federated Storemen and Packers Union of Australia ("the Union") notified the Industrial Registrar pursuant to s. 25(1) of the Conciliation and Arbitration Act 1904 Cth ("the Act") of an impending industrial dispute which was said to have arisen as a result of the decision of Wooldumpers (Victoria) Ltd. ("Wooldumpers") to terminate the employment of one of its employees, who was a member of the Union. Attempts at conciliation failed and the matter came before Mr. Commissioner Caesar, a member of the Conciliation and Arbitration Commission ("the Commission"), for arbitration. The Union sought an award ordering the reinstatement in employment of the employee who had been dismissed. Wooldumpers contested the jurisdiction of the Commissioner to deal with the matter, but he found that he had jurisdiction and intends to proceed unless he is prohibited as a result of these proceedings before us.

As was pointed out in Re Ranger Uranium Mines Pty. Ltd.; Ex parte Federated Miscellaneous Workers' Union of Australia [30] , where a dispute arises from the termination of employment, ordinarily two questions will present themselves. The first is whether the dispute has an interstate character and the second is whether the dispute pertains to the relations of employers and employees and not merely to the relationship between the individual and his former employer. The first question did not arise in Ranger because the dispute in that case arose in the Northern Territory and s. 53 of the Northern Territory (Self-Government) Act 1978 Cth applies the Act to an industrial dispute in the Northern Territory notwithstanding that the dispute is confined to that Territory. But the first question does arise in this case and an affirmative answer to it is essential to the jurisdiction of the Commission.

"Industrial dispute" is defined in s. 4(1) of the Act as a dispute "as to industrial matters which extends beyond the limits of any one State". The requirement that the dispute be of an interstate character stems from the limited character of the power of the Commonwealth under s. 51(XXXV) of the Constitution to legislate with respect to "Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State". Under s. 18 of the Act the Commission is empowered to prevent or settle industrial disputes by conciliation or arbitration.

Whilst it was not conceded by the Union that the dismissal of itself did not give rise to an interstate dispute, it could not point to anything which would suggest any interstate element. Wooldumpers is a Victorian company which carries on the business of wooldumping and packing wool into containers. It carries on that business only in Victoria and does not employ anyone outside Victoria. The Union relied upon the fact that the onus is on Wooldumpers as the prosecutor to prove lack of jurisdiction: Reg. v. Alley; Ex parte N.S.W. Plumbers & Gasfitters Employees' Union [31] . But the evidence before the Commissioner points positively to the fact that any dispute arising from the particular dismissal is confined to Victoria and, in the absence of any evidence to the contrary, the conclusion is inevitable that it is so confined.

The Union, however, sought to establish the necessary interstate element by means of a submission that the particular dispute was within the ambit of an earlier dispute which on 27 July 1988 had been found to exist between the Union and a number of employers, including Wooldumpers. That dispute, which is still in existence, was created by the failure of the employers to meet the demands contained in a log of claims dated 20 November 1986. It was found to extend beyond the boundaries of one State. The specific provision in the log of claims upon which the Union relies is cl. 23 which, so far as is relevant, provides:

(a) Except as provided for in sub-clause (c) of this Clause all employment shall be permanent. No notice of termination of employment shall be given to any employee by the employer without prior consent of the union, and no such notice shall be given whilst the employee is on annual leave, sick leave, bereavement leave, compassionate leave, long service leave, maternity leave, paternity leave, adoption leave or any other paid leave, or on leave of absence without pay, or is in receipt of workers' compensation payments.

(b) In addition to the provisions of sub-clause (a) a minimum of six months notice shall be given of intended termination of employment to the affected employee by the employer.

(c) Casual workers may be employed by agreement with [the] union

Clause 23 is, so the Union submits, a claim for permanency of employment save where the Union consents to termination, which consent may not be given in certain circumstances. It is a claim in the widest form and, according to the submission, necessarily encompasses a lesser demand that an employee dismissed otherwise than in accordance with the clause be reinstated in his employment. That somewhat elliptical statement of the proposition conceals, however, the fact that the actual claim made by the Union for reinstatement is of a different character to the claim contained in cl. 23 of the 1986 log and lies outside that clause, even treating that clause as no more than an "ambit claim": see Reg. v. Ludeke; Ex parte Queensland Electricity Commission [32] . It was made plain by the Union during the course of argument that it was not seeking an award laying down any conditions regarding the dismissal or reinstatement of employees. It was seeking an award ordering the reinstatement of a particular employee, not in order to achieve compliance with any previous obligation on the part of the employer, nor indeed to establish any such obligation for the future, but merely ad hoc, in order to meet the particular situation. Clause 23 of the 1986 log of claims, on the other hand, seeks an award which would establish a regime regarding the dismissal of employees, setting a standard of behaviour for the future to be observed by employers. Failure to observe the standard when embodied in an award would lead to proceedings for the enforcement of the award, not before the Commission, for the exercise of judicial power would be involved, but by a court.

The distinction between the two types of claim was recognized in Reg. v. Gough; Ex parte Cairns Meat Export Co. Pty. Ltd. [33] . In that case a Commissioner purported to order the reinstatement in employment of four employees who had been dismissed by the prosecutor. The Federal Meat Industry Award 1959 applied and provided for dismissal upon one week's notice without affecting an employer's right to dismiss without notice for malingering, inefficiency, neglect of duty or misconduct. The prosecutor contended that there was no interstate dispute and that the Commissioner acted without jurisdiction. It was upheld in this contention. Dixon C.J., with whom the other members of the Court agreed, expressed the view [34] that the Commissioner's order could not amount to a variation of the existing award because it lay outside the dispute comprised in the original log of claims. He continued [35] :

If you go further and look at what Mr. Commissioner Gough did, it will be seen that he was dealing with four individuals; he dealt with them in relation to something which affected them individually and their conduct. He was not laying down new terms of the old award, he was dealing specifically with what must be done with reference to four persons. Of course if the award had been broken, there are remedies to be taken before the Commonwealth Industrial Court to deal with the breach. But the parties were not before the Commonwealth Industrial Court, they were not putting the matter forward as a breach, although it is more or less conceded that it would have been a breach, if the employers were not justified in their view of the facts. Because they had dismissed men without the requisite notice and for that there must be grounds. If they were justified on their view of the facts, of course they were at liberty to do it. But the question then arises, in view of what I have said: how could these orders be supported? My answer is that I do not think they could be supported at all. It was an ordinary case of a Commissioner finding what he thought was a trouble and dealing with it independently of any question of his real authority. His real authority was to settle any industrial dispute extending beyond any one State, but this matter was something which was not of that character and did not partake of that character and was not incidental to the settlement of a two-State industrial dispute . There is no relevant difference between the situation in Reg. v. Gough; Ex parte Cairns Meat Export Co. Pty. Ltd. and the situation in this case. 1. (1962) 108 C.L.R. 343. 2. (1962) 108 C.L.R., at p. 351. 3. (1962) 108 C.L.R., at pp. 351-352.

The Union submitted that the decision in Ranger [36] has altered the law in such a way as to make it possible to conclude that the Commissioner has jurisdiction in this case. However, Ranger does not take the Union the distance it needs to go. What Ranger relevantly decided was that where a dispute about the reinstatement of a dismissed employee is agitated with reference to the position of remaining employees, it may extend beyond the relationship of the individual with his employer and pertain to the employer-employee relationship generally. So much is not really in dispute in this case. The definition of industrial matters in s. 4(1) of the Act includes par. (k):"the right to dismiss or to refuse to employ, or the duty to reinstate in employment, a particular person or class of persons." The prosecutor in this case has not suggested that the question of reinstatement of the dismissed employee is not an industrial matter or, indeed, that the dispute about it is not an industrial dispute. What it does say is that it is not an industrial dispute extending beyond the limits of one State and hence not an industrial dispute within the meaning of the Act. Where, as here, there is no claim for the future, it may be more difficult to establish that a dispute about the reinstatement of one employee extends beyond the relationship of the individual with his employer and pertains to the relations of employers and employees as is also required by the definition of industrial matters in s. 4(1).

The Union placed reliance upon the following observation in Ranger [37] :

However, disputes as to the duty to reinstate may be generated in advance of actual termination of employment, and in circumstances in which interstateness is necessary it may be expected that they will be generated as interstate disputes. That passage, far from dispensing with the need for an interstate element, is merely saying that where a dispute about reinstatement is generated in advance, it may be expected that it will be generated in such a way, whether on paper or otherwise, as to produce a dispute of the required character. Where a dispute arises from an actual dismissal there is not the same control over the character of the dispute. 1. (1987) 163 C.L.R., at p. 661.

Both principle and authority require a distinction to be drawn between a claim for conditions relating to the dismissal or reinstatement of employees generally and a claim that a specific individual be reinstated in employment, not by the application of any predetermined standard, but merely to deal with the one instance. Each claim is of a different kind and the one does not embrace the other. That being so, the dispute about the reinstatement of the dismissed employee in this case does not fall within the ambit of the 1986 log of claims and hence cannot partake of the interstate character of the dispute created by the rejection of that log. The Commission lacks jurisdiction in this matter and the order nisi for prohibition should be made absolute.

The Union's notice of dispute stated that "[t]he impending dispute had arisen as a result of the Wooldumpers' decision concerning the termination of employment of a member of this Union on Wednesday 4th May, 1988" and a request was made for a hearing "to resolve this matter". Attempts at conciliation failed. Mr. Commissioner Caesar, before whom the Union sought "relief through arbitration", noted that "[t]he relief sought is reinstatement". Although "the duty to reinstate in employment, a particular person or class of persons" is among the particular matters included in the definition of Industrial matters in s. 4(1) of the Conciliation and Arbitration Act 1904 Cth, a duty to reinstate a particular employee amounts to an industrial matter only if it pertains "to the relations of employers and employees". While it is wrong to assert as a general proposition that the Commission has no authority to entertain reinstatement disputes, as this Court pointed out in Re Ranger Uranium Mines Pty. Ltd.; Ex parte Federated Miscellaneous Workers' Union of Australia [38] , the Commission's jurisdiction in reinstatement disputes is limited. The Commission's powers are arbitral, not judicial, and they are limited to the making of awards in prevention or settlement of reinstatement disputes which exhibit particular characteristics. The Commission has no jurisdiction to make a judicial order for reinstatement of a particular ex-employee (an order which can be directly enforced); it has jurisdiction to make an award in prevention or settlement of a dispute as to the duty of an employer (or of employers generally) to reinstate in employment a particular person or class of persons when that duty pertains to the relations of employers and employees and the dispute extends beyond the limits of any one State. In my opinion, for the reasons stated by Gaudron J., the dispute before Mr. Commissioner Caesar did not have the character which was essential to his jurisdiction to arbitrate.

Conciliation and arbitration have as important roles to play in preserving interstate industrial peace in areas where it exists as in restoring it in areas where differing interests or aspirations, or local differences or disputes have degenerated to a stage where interstate industrial dispute and disruption have occurred or are pending. The grant of legislative power contained in s. 51(XXXV) of the Constitution plainly recognizes that that is so. Its emphasis is as much upon conciliation and arbitration for the "prevention" of interstate "industrial disputes" in the abstract as it is upon conciliation and arbitration for the "settlement" of particular identified interstate "industrial disputes" which have actually broken out. Obviously, the most effective way in which the processes of conciliation or arbitration can prevent the occurrence of interstate industrial disputes is by the conciliation of differences before the threshold of actual dispute is reached or, if actual dispute has broken out, by resolving it by conciliation or arbitration before it assumes an interstate character. Yet the Conciliation and Arbitration Act 1904 Cth ("the Act"), presumably reflecting a constricted view of the scope of the legislative power conferred by s. 51(XXXV) particularly in relation to conciliation, firmly bases the jurisdiction of the Australian Conciliation and Arbitration Commission ("the Commission") upon the identification of some specific interstate industrial dispute which has at least progressed to the stage of being "threatened", "impending", "probable" or "likely" and in respect of which a determination can be made of both "the matters in dispute" and "the parties": the Act, ss. 4(1) (definition of "Industrial dispute") and 24(1). This gives rise to the paradox that access to the national tribunal entrusted with conciliation and arbitration for the prevention of interstate industrial disputes (the Act, s. 18) is barred unless the potential disputants become qualified to invoke jurisdiction by exacerbating their differences to the stage where there is an actual, threatened, impending, probable or likely specific identified dispute of interstate proportions. The need to accommodate this paradox has led to the development of the stratagem of the "paper dispute".

The ordinary paper dispute (i.e. that arising from rejection or failure to accede to the demands of a log of claims served by a national union of employees upon a national organization of employers) serves to identify both the existence of a subject-matter appropriate to attract the exercise of arbitration powers and the parties to actual or potential dispute. Otherwise, it is not apparent to me that it serves any essential constitutional purpose. If the Constitution means what it says when it confers a broad power to make laws with respect to conciliation and arbitration for the prevention of interstate industrial disputes in the abstract, it is far from evident either that there is any constitutional need to make the manufacture of an interstate dispute, whether paper or real, a condition of the existence of jurisdiction conferred pursuant to that grant of legislative power or that it would not suffice for constitutional purposes if, e.g., the grant of jurisdiction to an expert tribunal such as the Commission were merely conditioned upon the opinion of the tribunal that circumstances exist in which the tribunal's conciliation or arbitration procedures may be conducive to the prevention of interstate industrial disputes. In that regard, it is difficult to see why s. 51(XXXV) of the Constitution, with its equal emphasis on prevention and settlement, is not sufficiently wide and flexible to take account of the close interaction and interdependence of almost all industrial relations between employees and employers in modern Australia by reason of, among other things, the ease of communications and the dominance of national organizations or confederations of employees and employers either in a particular industry or industries or generally. Indeed, even before 1900, the increasing interaction and interdependence of industrial relations in the various Colonies and the need for conciliation and arbitration at an early stage to prevent a local dispute escalating into an intercolonial one was surprisingly well appreciated. The point is readily illustrated by the following short references to the Convention Debates. Recourse cannot, of course, be had to the records of those Debates for the purpose of substituting for the meaning of the words of s. 51(XXXV) the scope and effect which the founding fathers subjectively intended the sub-section to have. As was pointed out in Cole v. Whitfield [39] , however, it is legitimate to refer to them for the purpose of identifying the contemporaneous meaning of language used and the subject to which that language was addressed.

The transcript of the 1891 Sydney Convention records Mr. Playford as saying:

We all admit, I imagine, that these industrial troubles do not belong to one colony alone. Labour has federated, and capital has federated, throughout the colonies, and the experience of the late strike shows most unmistakably, or, at all events, shows us in South Australia, that a strike may be ordered from New South Wales and that our people will obey the order; . Six years later, at the 1897 Adelaide Convention, Mr. Higgins, in proposing the addition of what was (in an expanded form) to become s. 51(XXXV), remarked: It may be said, "Leave the industrial disputes to the States"; but it is well known that these disputes are not confined in their evils to any one State. If there is a shipping dispute in Sydney it is sure to be felt in Melbourne; if there is a coal dispute in Newcastle it is sure to be felt at Korumburra. Any one State is unable to cope with the difficulty. If it should hereafter be found expedient to have a Court of Conciliation and Arbitration, it must be a Federal Court which can extend its power over the whole Federation. As Australia is so isolated from the other countries of the world by sea, it would be eminently apt to have a Federal Court of Conciliation and Arbitration for the purposes of Australia. The following year, at the Melbourne Convention, Mr. Higgins, in moving for the inclusion of s. 51(XXXV) in its present words, drew attention to the significance of the involvement of national organizations of employees and employers: Suppose you have a dispute of shearers. You have an organization of shearers all through Australia - an organization extending through Queensland, South Australia, Victoria, and New South Wales; and, on the other hand, you have the employers of the shearers all uniting on the opposite side. How, I say, can any state deal with a dispute of that nature which is intercolonial? Mr. Trenwith pointed to the increasing interdependence of industrial relations in the various colonies: In consequence of the continually increasing complexity of our industrial system there scarcely ever happens an industrial dispute of any magnitude, at any rate in the colonies, without it spreads its effect over the borders of two or three, and sometimes of all the colonies. In the same debate, other speakers pointed to the desirability that "trouble be nipped in the bud" (Mr. Kingston) and that dispute be stopped "in its early stages" (Mr. Howe).

To question the constitutional necessity for the Act's insistence upon the identification of an existing or pending interstate industrial dispute, paper or otherwise, as the jurisdictional basis of conciliation and arbitration is not to deny that the paper dispute performs a useful function within the context of that insistence. Within that context, it is obviously desirable that there be some procedure for satisfying the condition of jurisdiction short of actual industrial warfare. The recent decision of the Court in Re Ranger Uranium Mines Pty. Ltd.; Ex parte Federated Miscellaneous Workers' Union of Australia [40] would seem to discountenance an over-technical approach to the scope of the definition of the possible subject-matters of a qualifying "industrial dispute": see the Act, s. 4(1), definition of "Industrial matters". However, other rules, reflecting the structure of the Act, remain to restrict the circumstances in which the stratagem of the "paper dispute" will be effective to give rise to jurisdiction. The paper dispute produced by failure to accede to the demands of a log of claims must transcend purely local boundaries and be properly characterized as "interstate". More important for present purposes, such a paper dispute will only be adequate to found jurisdiction to deal with subsequent concrete incidents if its subject-matter is sufficiently comprehensive and its objectives sufficiently ambitious to include such incidents within its broad (and possibly changing) "ambit" of relevance since an award made in relation to the paper dispute "cannot give a form of relief that is not relevant to a matter in dispute, that is not reasonably incidental or appropriate to the settlement of that part of the dispute and that has no natural or rational tendency to settle the particular question in dispute": per Dixon C.J., Webb, Fullagar and Kitto JJ., Reg. v. Galvin; Ex parte Amalgamated Engineering Union, Australian Section [41] .

1. (1987) 163 C.L.R. 656. 2. (1952) 86 C.L.R. 34, at p. 40.

Even within the context imposed by the Act and quite apart from the fabrication of a paper dispute, there remains significant scope for conciliation and arbitration for the prevention, as distinct from settlement, of an identified potential interstate industrial dispute. As has been seen, the definition of Industrial dispute in s. 4(1) includes an interstate industrial dispute which has reached the stage of being "threatened", "impending" or "probable". That definition also includes "a situation which is likely to give rise to" such a dispute. Obviously, the fact that a wide paper dispute exists between parties will not preclude the existence of an actual, threatened, impending, probable or likely interstate industrial dispute about some particular matter within or related to the subject-matter of the paper dispute. Indeed, if one could disregard the requirements of s. 24 of the Act, the broad issue involved in the present case would be whether the Commission possessed jurisdiction to deal with the particular matter presently before it for the reason that that matter either came within the "ambit" of an existing paper dispute or, if it did not, was an actual or potential interstate industrial dispute in its own right. The qualification that s. 24 requires to that statement of the broad issue is that, except in a case where the Commissioner proceeds on the basis of an earlier finding in relation to the existence of an industrial dispute: see s. 24(2), the Commission shall, when proceedings in relation to an industrial dispute come before it, "determine whether there is an industrial dispute and, if so, who are the parties and what are the matters in dispute". The effect of that requirement is that the Commission must identify with some precision the interstate industrial dispute or disputes upon the basis of which it asserts conciliation and arbitration jurisdiction under the Act.

It is not necessary for the purposes of the present case to examine the extent to which the nature of the functions of conciliation and arbitration confines the scope of both the legislative power contained in s. 51(XXXV) of the Constitution and the jurisdiction conferred upon the Commission by the Act. Plainly, in the present case, there existed a dispute susceptible of resolution by arbitration. It arose from the dismissal by a Victorian company ("Wooldumpers") of one of its employees (Mr. King). If that dispute is seen as between Wooldumpers and Mr. King, the dispute is of a local character. To view the dispute as merely one between Wooldumpers and Mr. King would, however, be to ignore the factual context of the dispute and to distort its scope. Mr. King is a member of The Federated Storemen and Packers Union of Australia ("the Union") which is a national organization of employees. He had, for some eight years, been the Union's delegate at the work place where he was employed by Wooldumpers as a storeman. For its part, Wooldumpers is a member of the Australian Wool Selling Brokers Employers Federation ("the Federation") which is a national organization of employers. The dispute between Wooldumpers and its dismissed employee has already escalated into a dispute between those national organizations. The proceedings before the Commission were actually initiated by the Union, representing Mr. King's interests. Wooldumpers' interests were represented by Mr. Purvis, the Director of the Federation. The Union demands, and Wooldumpers and the Federation resist, Mr. King's reinstatement. In addition, Mr. King's dismissal must be viewed in the context of an existing interstate paper dispute to which both the Union and the Federation are parties arising from the Federation's failure to accede to a log of claims in which the Union demands, among other things, that employment in the relevant industry be permanent and be not terminated without the Union's prior consent. Mr. King's dismissal was without prior consultation with, let alone the consent of, the Union. If, in these circumstances, Mr. Commissioner Caesar had determined under s. 24(1) of the Act that there had arisen either an interstate industrial dispute between nation-wide disputants or, at the least, "a situation which [was] likely to give rise to" an interstate industrial dispute, the Court could not have properly found, on the material in evidence, that the Federation had discharged the onus of clearly establishing that such a determination was wrong: see, e.g., Holyman's Case [42] ; Reg. v. Alley; Ex parte N.S.W. Plumbers & Gasfitters Employees' Union [43] ; Reg. v. Bain; Ex parte Cadbury Schweppes Australia Ltd. [44] . In that regard, it is important to bear in mind that the focus of the closing words of s. 51(XXXV) of the Constitution (i.e. "extending beyond the limits of any one State") is upon "disputes". The qualification contained in those words, which is carried into the Act, is not that the subject-matter of dispute has an intrinsically interstate character. It is merely that the actual or potential dispute or disputes extend beyond the limits of a single State.

1. (1914) 18 C.L.R. 273, at pp. 284-285. 2. (1981) 153 C.L.R. 376, at pp. 392, 395-396. 3. (1984) 159 C.L.R. 163, at p. 167.

In fact, however, Mr. Commissioner Caesar has made no such determination. The finding upon the basis of which he has asserted jurisdiction is to the effect that the dispute relating to Mr. King's dismissal comes within the ambit of the earlier paper dispute. That finding was mistaken. The relevant demands in the log of claims initiating that paper dispute were for a regime in the wool broking industry which would, among other things, regulate the nature of employment and the circumstances in which it could be terminated. That paper dispute does not include within its broad range or "ambit" a dispute about an actual dismissal of a particular employee in the absence of that claimed new regime. The paper dispute is about whether certain rules should govern dismissals generally; it simply does not encompass a dispute about the justification or consequences of a particular dismissal in the absence of such rules. It may be that such an operation of the "ambit" requirement is undesirably artificial in that it would seem calculated to encourage the inclusion of yet another exaggerated demand in standard logs of claim (e.g. a demand to the effect that an employer shall not, at any time between the service of the log and the making of an agreement or award disposing of the Union's demands, dismiss any employee in respect of whom the award is sought). It is, however, unnecessary to pursue that question here. It suffices to say that such artificiality is inevitable for so long as the formalistic ritual of the paper dispute remains necessary to enliven conciliation and arbitration jurisdiction.

Having mistakenly held that the particular matter before him came within the "ambit" of the earlier paper dispute, Mr. Commissioner Caesar proceeded to hear the matter on the basis of the earlier dispute finding (see s. 24(2)) without determining whether the particular matter before him itself constituted an actual, threatened, impending, probable or likely interstate industrial dispute for the purposes of the Act. That being so, the applicant is entitled to an order prohibiting Mr. Commissioner Caesar from dealing with the particular matter before him on the basis that it comes within the "ambit" of the earlier paper dispute.

This return of an order nisi for prohibition directed to Mr. Commissioner Caesar of the Conciliation and Arbitration Commission ("the Commission") raises once again the question of the power of the Commission to make an award creating an obligation upon an employer to reinstate a dismissed employee. The relevant facts are set out in the judgment of Wilson, Dawson and Toohey JJ. and I need not repeat them.

It is now settled, following the decision in Re Ranger Uranium Mines Pty. Ltd.; Ex parte Federated Miscellaneous Workers' Union of Australia (Ranger) [45] that the Commission has power to make an award creating an obligation upon an employer or employers to reinstate a person or a class of persons in employment: see par. (k) of the definition of Industrial matters in s. 4(1) of the Conciliation and Arbitration Act 1904 Cth ("the Act"). However, in the absence of particular legislative provision relying on a head of constitutional power other than that conferred by s. 51(XXXV) of the Constitution, the Commission's authority is confined by the constitutional requirement that its powers of conciliation and arbitration be exercised "for the prevention and settlement of industrial disputes extending beyond the limits of any one State". An award will be in settlement of a dispute if it is "relevant", "reasonably incidental" or "appropriate" to a matter the subject of the dispute or has a "natural tendency to dispose of the question at issue": R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Kirsch [46] ; Reg. v. Galvin; Ex parte Amalgamated Engineering Union, Australian Section [47] ; Reg. v. Holmes; Ex parte Victorian Employers' Federation [48] ; Reg. v. Ludeke; Ex parte Queensland Electricity Commission [49] .

1. (1987) 163 C.L.R. 656. 2. (1938) 60 C.L.R. 507, at p. 538. 3. (1952) 86 C.L.R. 34, at pp. 40-41. 4. (1980) 145 C.L.R. 68, at p. 76. 5. (1985) 159 C.L.R. 178, at p. 183.

In the present case The Federated Storemen and Packers Union ("the Union") points to a dispute created by the service and rejection of a log of claims in 1986. It is not in issue that the log of claims gave rise to an interstate industrial dispute. What is in issue is whether the dispute concerns a subject-matter capable of settlement by the making of the award sought.

The relevant claim made in the 1986 log of claims was expressed as a claim for permanent employment, but was in effect a claim that employment should not be terminated without the prior consent of the Union and upon six months' notice given other than during an employee's absence on leave. Once an interstate dispute is created the Commission may dispose of it "wholly or piecemeal as it thinks convenient": Federated Engine-Drivers' and Firemen's Association of Australasia v. Adelaide Chemical and Fertilizer Co. Ltd. [50] ; Reg. v. Isaac; Ex parte State Electricity Commission (Vict.) [51] . An award made in "piecemeal" settlement of an interstate dispute may be confined in its operation to a single State: see, e.g., Reg. v. Clarkson; Ex parte General Motors-Holden's Pty. Ltd. [52] . Thus the dispute created by the rejection of the 1986 log of claims authorizes the making of "piecemeal" awards (within the ambit of the claim) adapted to the exigencies of particular situations involving threatened dismissals, notwithstanding that any award so made is confined in its operation to a single workplace in a single State. So too, if, as claimed in the present case, the dispute created in 1986 comprehends a claim for the creation of an obligation to reinstate employees dismissed otherwise than in accordance with the regime postulated by the claim, it will authorize the making of "piecemeal" awards adapted to the situation arising when an employee is so dismissed by an employer party to the dispute.

1. (1920) 28 C.L.R. 1, at p. 9. 2. (1978) 140 C.L.R. 615, at p. 619. 3. (1976) 134 C.L.R. 56, esp. at pp. 76-77.

The claim made in 1986 does not in terms deal with the subject of reinstatement. However, the accepted approach to the meaning of industrial demands requires no more than that "the party to whom they are addressed ought fairly to understand what he is requested to do on the specific matters which form the subject of the alleged grievance": Reg. v. Association of Professional Engineers of Australia; Ex parte Victoria [53] : see also Reg. v. Heagney; Ex parte A.C.T. Employers Federation [54] . The meaning is not to be ascertained by reading "the text of a log of demands without regard to any of the facts and circumstances out of which it arises": R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Kirsch [55] . Nor is it to be ascertained without regard to prevailing practices and concepts within the field of industrial regulation.

1. (1957) 100 C.L.R. 155, at p. 162. 2. (1976) 137 C.L.R. 86, at pp. 98-100, 105-106. 3. (1938) 60 C.L.R., at p. 538.

Until the decision in Ranger in 1987 the Conciliation and Arbitration Commission generally assumed that it had no authority to entertain reinstatement disputes: see Ranger [56] . Moreover, the prevailing industrial criterion for the making of an order for reinstatement is that the dismissal was harsh, unjust, unreasonable or unfair: see Ranger [57] . Within this context, it seems to me impossible to say that an employer faced with the demand made in 1986, headed "Contract of Employment", dealing in terms with the duration and manner of severance of the employment relationship, making no reference to reinstatement and making no allusion to the criterion by which an award for reinstatement is usually made would or could be expected to understand the demand to comprehend a claim that all persons dismissed otherwise than in accordance with the regime therein postulated should be reinstated in employment.

1. (1987) 163 C.L.R., at p. 660. 2. (1987) 163 C.L.R., at p. 665.

The demand made in 1986 was clearly intended to create a dispute on the general subject of security of employment. The existence of or the potential for the creation of a duty to reinstate also bears on the general subject of security of employment. Even so, in my view, the making of the award for reinstatement as sought in the present case would not have any tendency to dispose of the dispute created by the rejection of the demand made in 1986. The claim made in the present case is not made by reference to the regime postulated in the log of claims, or by reference to the duration or manner of severance of the employment relationship. Rather, the award is sought by reference to the harshness or unfairness of the particular dismissal having regard to the circumstances of the particular person whose reinstatement is sought and having regard to the matters which have generally been accepted by the particular employer as warranting dismissal. The considerations by reference to which the claim for reinstatement was advanced serve to show that the making of the award sought would not in any way bear upon the dispute created in 1986, that dispute being, in essence, a dispute designed to achieve greater security in employment by award prescription as to the duration and method of severance of the employment relationship.

Finally, prohibition is resisted on the basis that the prosecutor has not discharged the onus of establishing that the situation which arose following dismissal did not constitute an actual, threatened, impending or probable interstate industrial dispute, or a situation likely to give rise to such a dispute, they being the situations defined in s. 4(1) of the Act as constituting an "industrial dispute" which the Commission is authorized to conciliate or arbitrate: see Reg. v. Alley; Ex parte N.S.W. Plumbers & Gasfitters Employees' Union [58] and Reg. v. Bain; Ex parte Cadbury Schweppes Australia Ltd. [59] . It is not difficult to envisage situations in which the dismissal of an employee or employees might properly be viewed as likely to give rise to an interstate industrial dispute. Nor is it difficult to envisage situations in which a demand for the reinstatement of an employee is agitated in a manner which would give rise to an industrial dispute as defined in s. 4(1) of the Act. However, the present claim having been at all times advanced on the basis that it was within the ambit of the dispute created in 1986, there is no reason to suppose that the dismissal of the employee whose reinstatement is sought is capable of being so viewed or that the claim for reinstatement was so agitated. In these circumstances there is no basis for resorting to considerations of onus of proof to resist the grant of prerogative relief.

1. (1981) 153 C.L.R. 376. 2. (1984) 159 C.L.R. 163.